EEA nationals’ right to remain in the UK

By October 7, 2016Current Affairs
Right to Remain | HR Solutions

There have been two significant court cases this year that have looked to clarify what rights EEA nationals have to stay in the UK whilst job hunting.

The UK government has amended the Europe Economic Arena (EEA) regulations a number of times over recent years. On the face of it, this makes it more difficult for EEA job seekers to stay here in the UK while they are between work or studies. To complete a permanent residence application, a period of five years without interruption must be achieved at ‘qualified status’ – making it difficult should anything happen to disrupt the continuity.

Current regulations require an EEA national to fall under one of the following categories to ensure they make this qualified status:

  • Full-time employed
  • Self-employed
  • Students
  • Self-sufficient
  • Jobseekers

For some jobseekers that want to claim means-tested benefits, this will mean satisfying the conditions of a test, known as the habitual residence test (HRT).

These conditions include:

  • Proving that you have the legal right to live in the UK, known as the right to reside.
  • Proving that you intend to settle in the ‘Common Travel Area’ (the UK, Isle of Man, Channel Islands or Ireland), known as habitual residence.

Regulations introduced in 2014 require that if an EEA national has come to the UK looking for work, to qualify for income based jobseekers allowance they first must live in the common travel area for a minimum period of three months.

There have been two recent court decisions that have assisted the plight of EEA nationals. The first case examined in detail the requirement for an individual to be able to produce compelling evidence that they had been looking for work for at least 91 days. This was seen by most as controversial and even contradictive, given that in a previous case it was found that anyone seeking work should be allowed at least six months to do so and during which time they should be regarded as a worker.

The second case gave consideration to what actually constitutes ‘compelling evidence’, when looking for employment. It was decided that the jobseeker must be given a realistic opportunity to be able to engage in the process. If they are able to demonstrate that they had taken positive steps to improve their situation, such as getting a qualification which would help them find work, then this would be seen as compelling evidence.

Both of these cases should offer some reassurances to EEA nationals that the courts will continue to refer to European Union law in such a way that promotes the right of free movement as far as is reasonably possible.

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